CHC Testifies Before the COGCC to Demand Full Disclosure of Fracking Chemicals

Testimony of Robin Smith, Chair, Board of Directors, Citizens for a Healthy Community

Before the Colorado Oil & Gas Conservation Commission

On the Proposed Hydraulic Fracturing Disclosure Rule (Amendments to Rule 205)

December 5, 2011

Good morning. My name is Robin Smith and I’m the Chairman of the Board of Directors of Citizens for a Healthy Community, a Delta County organization formed to protect our community from irresponsible gas development.

Delta County produces $45 million in agricultural products annually while employing 1,100 people on its farms, ranches, vineyards, and orchards. According to the USDA, Delta County has nearly twice as many organic farms as any other county in Colorado. We produce grapes, peaches, plums, nectarines, apricots, and most of the apples, pears, and cherries grown in the State. Much of this fruit is grown using organic farming methods. I can tell you from personal experience, you haven’t enjoyed life to its fullest until you’ve eaten an organic peach from the North Fork Valley of Delta County!

But the explosion of natural gas development threatens this network of sustainable agriculture, our local economy, and our way of life. Residents of Delta County are particularly concerned because the proposed gas developments in our area lie within the watershed of many of our domestic water and irrigation districts. If toxic chemicals from gas development contaminate our irrigation water, our farmers will lose their organic certification along with their ability to support their family. This loss of jobs would devastate our community.

At the same time, many families in our community rely upon natural gas for heating, cooking, and bathing. As a result, we recognize there’ll be a need to continue drilling for natural gas for some time in the future until renewable, non-polluting energy to replace fossil fuels has been developed. However, current methods of producing natural gas are unacceptable because they have the potential for threatening our families’ health and our environment. We’re hopeful this rulemaking process will correct some of the regulatory flaws that open the door to threats to the health of our community.

Citizens for a Healthy Community believe decisions regarding this proposed rule should be based on the Precautionary Principle. This Principle instructs us to err on the side of caution in protecting public health by denying a proposed action when scientific uncertainty exists regarding the potential harm of the action. With the Precautionary Principle in mind, Citizens for a Healthy Community offers the following recommendations:

1.     COGCC’s Strategic Plan Goal #2 says the Agency will, “Prevent…adverse impacts to public health, safety, welfare and the environment.” To implement this goal, Rule 205 should include a prohibition on injecting toxic, hazardous, carcinogenic, or other harmful substances, including diesel fuel, into the ground.

2.     Rule 205 should require oil and gas companies to obtain approval from COGCC prior to injecting any substance into the ground. To obtain this approval, operators must be required to provide COGCC with data and scientific studies proving the safety of all substances they propose using.

3.     COGCC rules should require oil and gas operators to disclose all chemical constituents anticipated to be used as part of the submittal requirements for an Application for Permit to Drill (APD). This requirement will allow the public an opportunity to review and comment on the list of fracking chemicals prior to the issuance of a permit.

4.     According to COGCC’s Notice of Rulemaking Hearing, we are here today because  “Members of the public have expressed interest in learning the identity of chemicals in hydraulic fracturing fluids.” Yet Paragraph D. of proposed Rule 205A contradicts this purpose by stating, “Vendors, service companies, and operators are not required to disclose Trade Secrets to the Chemical Disclosure Registry.”

In its current form, about the only thing the rule requires an operator to disclose is whether or not they are going to disclose their fracking chemicals. This non-disclosure rule merely codifies the “Honor System” that currently exists through and does not “demonstrate balanced leadership in the regulation” of oil and gas as called for in Goal #3 of COGCC’s Strategic Plan.

Let me be clear about what Citizens for a Healthy Community is requesting–we want an end to the secrecy. Paragraph D of Rule 205A must be deleted. This rule must instead require full disclosure of all substances put into the ground during the drilling and stimulation process. Industry must not be allowed to hide behind trade secrets. No exceptions. No loopholes. The right of the citizens of Colorado to know the chemicals that will be injected into the ground with the potential of adversely affecting their family’s health and safety overrides the desire of a corporation to keep this information confidential. The oil and gas industry would like us to believe they’re protecting something as harmless as my grandmother’s apple pie recipe. They aren’t. They’re trying to protect a recipe for a toxic brew that has the potential for poisoning our air and water and causing illness as well as fatalities. According to The Endocrine Disruption Exchange, 48% of the fracking chemicals they’ve identified can cause death when ingested. There is no justifiable reason why this information should be hidden from the public.

In 2010, Wyoming passed a disclosure law allowing trade secret information to be withheld. Even with safeguards written into their law to maximize disclosure while minimizing questionable claims of trade secrets, approximately 150 exemptions have already been granted. Many of the companies that have applied for and received exemptions to disclosure reporting requirements in Wyoming, also operate in Colorado. We can expect these same companies to submit trade secret claims in Colorado.

As part of this rulemaking process, Citizens for a Healthy Community expected COGCC to identify any barriers that may exist to achieving full disclosure and then outline the steps the Agency intends to take to eliminate these barriers. For instance, if you found there are statutory barriers to preventing complete disclosure, then we expect you to go to the General Assembly to obtain the necessary authority to overcome these barriers before finalizing this rule. This includes requesting the state legislature to exempt drilling and fracking chemicals from trade secret protection under the Colorado Open Records Act and Colorado Uniform Trade Secrets Act.

Anything less than elimination of trade secret protection for drilling and fracking chemicals leading to full disclosure of all chemicals will jeopardize the health, welfare, and safety of Colorado citizens and make this rulemaking process a tragedy.

5.     Paragraph B.(5) of Rule 205A, titled Disclosure to Health Professionals, must be deleted in its entirety. If a physician obtains information through the disclosure process outlined in this rule that confirms his patient’s health is in jeopardy due to exposure to fracking chemicals, and other people risk being exposed to the same chemicals from the same source, the only ethical course of action for this doctor to take is to alert the other affected people in the community. At a time when the public interest would be best served by having this information publicly available to prevent further harm to other persons, Paragraph B.(5) of this rule makes it illegal for a physician to inform the public of this immediate health risk. Please explain to us how is this gag-order on a physician is consistent with your moral, ethical, and legal obligation to protect public health, safety, and welfare?

6.     Paragraph C. of Rule 205A, titled Disclosures Not Required, must be deleted in its entirety for the simple reason that no public purpose is served by withholding this information.

7.     Citizens for a Healthy Community recommends increasing the Chemical Inventory records retention provision in Paragraph f. of Rule 205 from five to 50 years after plugging and abandonment. A provision should also be inserted in this paragraph requiring the retention of records of the Chemical Registry to be maintained by COGCC for 50 years after plugging and abandonment. This will ensure records exist decades after operations are completed when the potential for groundwater contamination still exists.

8.     Paragraph i. of Rule 205, which allows for an operator to receive a variance from the disclosure requirements of paragraphs d, e, and f, should be deleted.

9.     Paragraph B.(2)(A) of Rule 205A should be revised to require submittal of the Chemical Disclosure Registry within 30 days of completion of drilling and well stimulation operations. Rule 308 already requires an operator to submit a Drilling Completion Report (Form 5) to COGCC within 30 days of completion of drilling operations, so this adds no additional burden to the operator.

10.  Paragraph B.(2)(B) of Rule 205A should be deleted. The operator, not the service provider, vender, or manufacturer, should be responsible for providing full disclosure to the Chemical Disclosure Registry. Operators must be held accountable for the accuracy of all information provided or trade secret claims and must be held responsible for all products used and contractors hired.

11.  Paragraph B.(2)(A) of Rule 205A should require the chemical products inventory to include the known potential of each chemical to adversely affect human health, property, and the environment.

12.  The definition of Chemical Disclosure Registry must be revised to require this information be posted on COGCC’s website, not For this information to be publicly accessible, including through the Colorado Open Records Act, and perceived by the public as credible, it must be under the control of COGCC, not a third party’s website.

13.  Paragraph C. of Rule 205A should be deleted. The operator must know and be held responsible for all substances used in the drilling and fracking process.

14.  Citizens for a Healthy Community strongly supports recommendations made by other parties for imposing a requirement that all hydraulic fracturing fluids contain an inert maker that can be traced back to a specific operator to assist in identifying suspected or real ground water contamination.

15.  Rule 316C should be revised to require a minimum of 3 working days notice of intent to conduct hydraulic fracturing.

16.  Financial penalties for violation of this disclosure rule must be high enough to send an unmistakable message that failure to comply with disclosure requirements represents a serious violation of the public’s right to know. A one thousand dollar fine, as currently established in Rule 523c, is insufficient to send this message. Rule 523c should be revised to state that failure to comply with the operator disclosure requirements and/or timeline established in Paragraph B.(2)(A) of Rule 205A shall automatically trigger a fine of $10,000 on the first day the information is delinquent, and an additional $1,000 for every working day thereafter.

Thank you for considering our comments.

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